Opinion
B162739.
7-29-2003
THE PEOPLE, Plaintiff and Respondent, v. SARAH CATHERINE COSTELLO, Defendant and Appellant.
Allan Fellman for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Kyle S. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In a trial by jury appellant Sarah Catherine Costello was convicted of unlawful sexual intercourse (Pen. Code, § 261.5, subd. (c)) and oral copulation of a person under 18. (Pen. Code, § 288a, subd. (b)(1).) She appeals on the ground that she was precluded from introducing evidence that the victims mother communicated with appellants employer threatening a lawsuit. Appellant also contends giving CALJIC No. 2.20 "[misled] the jury" after the court excluded, in limine, the only evidence of the victims motive to conceal his true age from her. We find no error and affirm.
PROCEDURAL BACKGROUND
Prior to the commencement of trial, the People moved in limine to exclude "any mention of the fact that Randy G[.], the victim in this case, was even contemplating filing a lawsuit against the defendant and his employer Ralphs." The People argued it would be "unduly time-consuming and would confuse the jury as to the issues in the case." Appellants counsel responded, "There is a document in writing by the mother of the victim saying that based on the outcome of this trial will depend on whether they go after Ralphs for money, and we feel . . . theres an attempt to extort money from Ralphs and in effect from our client also." He also informed the court that a witness told him that "they did make a demand and it was refused by Ralphs and we do have the writing by the mother . . . that they are considering going after Ralphs." He argued, "theres a strong possibility that the evidence — if were able to bring it out — might have shown that [Randy and his mother] had planned [a conspiracy to conceal Randys age] from the beginning." In response to the trial judges questions, appellants counsel clarified that Randys mother, not Randy, wrote the letter threatening Ralphs with a lawsuit.
After eliciting the fact that when the letter had been written, Randy was an adult, the trial court held that any communication by Randys mother with Ralphs could not be attributed to him. Appellants counsel did not object or disagree. Also, appellants counsel did not offer or present any letter or other writing corroborating that there was any communication with Ralphs demanding money or threatening a lawsuit.
In support of appellants motion for a new trial, a copy of a memorandum dated March 14, 2002, is attached. It is addressed to Ralphs Grocery and prepared by a Ralphs manager, Marty Umemoto. The memorandum reported on an interview by a Ralphs district manager with appellant. It referred to a 10-page letter written by Randys mother to Ralphs concerning a claim against appellant. The interview of appellant was part of an investigation by Ralphs to determine if it had any liability for appellants conduct. The memorandum reports that Ralphs determined it had no liability. The 10- page letter was not provided with the motion or otherwise.
The trial court granted the motion to exclude any evidence that Randy G. was contemplating a lawsuit against the defendant or Ralphs on the ground that such evidence was irrelevant.
STATEMENT OF FACTS
Randy G. was born on October 27, 1982. Appellant was born on December 6, 1970, making her 12 years older than Randy G. On December 6, 1999, Randy, then 17 years old, was hired as courtesy clerk ("bagger") by Ralphs where appellant was an assistant grocery manager. In that capacity she had supervisory authority over Randy and other "baggers."
Randy testified that about "the beginning of January, February" of 2000 he told appellant that he was 17 and was in the 11th grade at Grant High School. He also testified that "my mom told her, family and friends told her, I told her [I was under age]."
Appellant testified, on the other hand, she did not know Randys age until she attended Randys 18th birthday party on October 27, 2000. On one prior occasion she asked him how old he was and he told her: "Im old enough to please a woman."
Penny Ann Verble, a service representative at Media City Community Credit Union, testified that both Randy and appellant arrived to open a checking account for Randy in August 2000. She waited on them at her window counter and assisted them with the application. Randy was required to provide his birthday. Verble explained to appellant and Randy that because of his age, an adult must be on the account with him. Appellant agreed to sign the application to facilitate obtaining the joint checking account. Appellant maintained, however, she did not learn Randys age until she attended his 18th birthday party.
Beginning in February 2000, Randy and appellant became friends and in time developed a romantic relationship. In July 2000, they traveled to Las Vegas and shared a hotel room where they engaged in sexual activity. In August 2000, following the trip to Las Vegas, appellant was at Randys home and performed oral sex on him. Near the end of August, Randy performed oral sex on appellant. Randy testified that they engaged in oral sex and sexual intercourse on numerous occasions. Appellant admitted she and Randy had engaged in sex as Randy had testified, disputing only the number of occasions.
DISCUSSION
A. THE SUPERIOR COURT DID NOT ABUSE ITS
DISCRETION IN EXCLUDING EVIDENCE
The primary issue on appeal is the exclusion of any evidence that Randy G. contemplated filing a lawsuit against Ralphs on the ground it was irrelevant. Appellant contends this was error because it precluded the defense from introducing any evidence of bias, motive, or interest. Specifically, appellants contention is that a letter written by Randys mother to Ralphs concerning monetary damages against appellant or Ralphs is sufficient to show that Randys testimony is subject to impeachment on the ground that he has a bias, motive, or interest in the outcome of the proceeding. In other words, appellants contention is that Randy had an economic motive to give false testimony and lied when he stated that he and others told appellant he was 17 years old.
Appellant argues that Randy and his mother conspired to conceal his age so that they would be in a position to seek monetary recovery from appellant and Ralphs. That conclusion is based only on a representation that Randys mother wrote a 10-page letter to Ralphs seeking monetary damages because of appellants sexual relationship with Randy. That is a leap of logic without the benefit of an adequate offer of proof. Appellant failed to link any involvement by Randy with his mothers letter to Ralphs. The trial court held that the mothers letter was not attributable to Randy and appellant made no offer of proof compelling a contrary result. At best, appellant only speculated that Randy and his mother engaged in a conspiracy to conceal his age from appellant in order to extort money from her and impose liability on Ralphs. Without the 10-page letter or any other documentation or evidence, appellants argument is very attenuated.
Randy and appellant had a romantic relationship beginning in February 2000 and became sexually active in July through October 2000 and even after his birthday. There is no evidence of the date that Randys mother wrote the letter to Ralphs. An exhibit to appellants motion for new trial is a memorandum referring to an interview of appellant by a district manager of Ralphs on September 26, 2001. In that interview there is mention of the 10-page letter. (See fn. 1, ante.) It was incumbent on appellant to make an offer of proof by way of timing and other evidence that Randy was connected to his mothers communication to Ralphs. Such evidence simply does not establish that the 10-page letter, or mere reference to its existence has "any tendency in reason to prove [Randy is not credible]." (Evid. Code, § 210.)
In addition, even if the evidence was improperly excluded, it did not amount to a "miscarriage of justice." The evidence that appellant and Randy engaged in oral sex and sexual intercourse before Randy reached the age of majority is uncontroverted. The only contested issue is whether appellant knew that Randy was a minor. Both Randy and an independent witness, the member services representative at the credit union, testified convincingly that appellant was informed of Randys minority. Therefore the exclusion of evidence that Randys mother sought to obtain monetary damages from Ralphs is at most harmless error and does not compel a reversal. (In re Mark C. (1992) 7 Cal.App.4th 433, 442- 444 ["The overriding rule on review is stated in Evidence Code section 354, subdivision (a): A judgment shall not be reversed by reason of erroneous exclusion of evidence unless a miscarriage of justice is shown and it appears of record that the substance, purpose, and relevance of the excluded evidence was made known to the court by the questions [* 9] asked, an offer of proof, or by any other means . . . ." (Evid. Code, § 354, subd. (a).)"].) Here, appellants response to the prosecutions motion to exclude amounted to no more than an offer to show that Randys mother communicated with Ralphs concerning a claim for monetary damages. Appellants counsels speculation that it might show a conspiracy to conceal Randys age for monetary gain falls short of demonstrating Randys bias, motive, or intent. Appellant simply failed to make an adequate offer of proof tying Randy to his mothers pursuit of a monetary claim against Ralphs.
"A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice." (Evid. Code, § 354.)
Precluding only mention of the contemplated civil suit did not preclude presentation of evidence that there was a conspiracy or an attempt to conceal the victims age. At trial, appellant had adequate opportunity to show a mistaken belief as to the victims age. Nevertheless, no evidence was presented at trial to suggest the victim or his mother made any effort to conceal the victims age. In fact, significant evidence was shown by the People that the age of the victim was well known by appellant. Thus, in the evidentiary context of the entire trial, the exclusion of evidence of Randys purported contemplation of a civil suit against Ralphs and his mothers 10-page letter to Ralphs did not result in a miscarriage of justice.
B. CALJIC NO. 2.2O WAS PROPERLY GIVEN
Appellant argues the court erred in giving the portion of the instruction that reads, "the existence or nonexistence of a bias, interest, or other motive" may be considered as a factor in determining the believability of a witness. (Italics added.) Appellants theory is that her only evidence of motive was excluded, misleading the jury when instructed to consider the nonexistence of a motive. That argument misses the mark. The court inquired of appellant if the jury instructions were acceptable. Her counsel responded: "Im ok with that." Moreover, the notes to CALJIC No. 2.20 state: "The substance of this instruction must be given sua sponte in every criminal case, omitting those paragraphs inapplicable under the evidence. The paragraph as to the existence or nonexistence of a bias, interest, or other motive and the paragraph as to the attitude of the witness toward this action in which he testifies, etc., should be given in any case in which the victim of an alleged offense has testified for the prosecution, regardless of whether specific evidence of any motive or disposition to misstate facts on the part of the complaining witness has been adduced by the defendant." (People v. Rincon-Pineda (1975) 14 Cal.3d 864, 883-884, 123 Cal. Rptr. 119, 538 P.2d 247.) Finally, upon an examination of the entire record, we conclude that giving CALJIC No. 2.20 did not result in a miscarriage of justice and it is not reasonably probable the defendant would have obtained a more favorable outcome if the instruction had not been given. (See People v. Breverman (1998) 19 Cal.4th 142, 178, 960 P.2d 1094.)
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, J., CURRY, J.